F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 17 January 2014, by Mr Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the club, Club S, from country J as Claimant against the player, Player L, from country R as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 17 January 2014, by Mr Theo van Seggelen (Netherlands), DRC judge, on the claim presented by the club, Club S, from country J as Claimant against the player, Player L, from country R as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 22 July 2010, Player L, from country R (hereinafter: the Respondent), and the Club S, from country J (hereinafter: the Claimant), signed an employment contract (hereinafter: the contract) valid as from the date of signature until the end of the 2011/2012 season. 2. According to art. 18 of the employment contract, the Claimant undertakes to provide the Respondent with the following: - USD 2,500 as monthly remuneration, payable at the end of each month; - USD 300 as housing allowance or “appropriate furnished accommodation” for the first month of contract; - USD 5,000 upon receipt of the International Transfer Certificate (ITC); - USD 5,000 on 30 November 2010; - USD 5,000 on 15 March 2011. 3. In addition, art. 17 of the contract stipulates that “Either party may terminate this contract without having any consequences whatsoever (whether payment of compensation or imposing sporting sanctions) in the event of a convincing cause”. 4. On 27 February 2011, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting the payment of the total amount of USD 17,200, made up of: - USD 5,000 as reimbursement of the payment due upon registration of the Respondent; - USD 700 corresponding to a flight ticket; - USD 1,500 corresponding to hotel expenses; - USD 10,000 as compensation “for the inability of the club […] to register another professional player instead of him due to the end of registration period at country J Football Federation”. 5. According to the Claimant, on 27 July 2010 the Respondent’s ITC was received by the country J Football Association and thereupon the Claimant paid him the amount of USD 5,000. The Claimant claims that the Respondent only played one match for the club and left country J, without authorization, on 5 August 2010 and allegedly returned to country R. The Claimant states having tried without success to contact the Respondent and request his return. Thus, by means of its correspondence dated 9 August 2010, the Claimant requested the country J Football Association to lodge a complaint against the Respondent in front of the country R Football Federation. As no answer was ever received from the country R Football Federation, the Claimant decided to refer the case to FIFA. 6. In his response, the Respondent states that the Claimant has not complied with the employment contract, by not paying him accommodation and food expenses, flight tickets or match bonuses. Therefore, the Respondent left the Claimant on an unspecified date and ended his career in football. 7. In its replica, the Claimant stated that the Respondent has been provided with accommodation in a four-star hotel with full board. In this respect, the Claimant provided a declaration from the Palmyra hotel, dated 27 October 2011, confirming the Respondent’s stay as from 27 July 2010 until 5 August 2010, including three meals per day, all paid by the Claimant. According to the hotel, the Respondent left without checking-out or informing the reception. 8. Furthermore, the Claimant indicated that the expenses regarding the flight tickets have been paid to the Respondent’s agent. 9. After the date of the meeting with the DRC judge was communicated to the parties, the Respondent provided FIFA with his final position. In his final statement, the Respondent claimed he believed he would receive the amount of USD 30,000 upon the signature of the contract. 10. After having participated in a friendly match, the Respondent was allegedly informed by the Claimant that the payment of such amount in full was not possible at the time. Thus, he would instead receive USD 5,000 upon signature, USD 5,000 on the following day and the residual amount upon return of the Claimant’s president. 11. In addition, the Respondent alleged that the Claimant informed him that he would have to leave the hotel and stay at the training camp and that it was no longer possible to provide him daily meals. 12. Furthermore, from the USD 500 as bonus per victory allegedly agreed between the parties, the Respondent claims to have received only USD 50, in spite of having played in a match won by the Claimant. 13. The Respondent confirms having received the USD 5,000 upon signature of the contract, of which USD 2,600 he allegedly used to purchase his own flight ticket to country J. 14. The Respondent further states to have contacted the Claimant with regard to the aforementioned issues, but not having received a satisfactory answer from the club. Thus, the Respondent decided to leave the Claimant and end his career in football. 15. According to information at FIFA’s disposal in the Transfer Matching System (TMS), the player was not subsequently transferred internationally as a professional. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 27 February 2011. Consequently, the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations (editions 2010 and 2012), he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension, between a country J club and a country R player. 3. Furthermore, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (editions 2010 and 2012) and considering that the present matter was submitted to FIFA on 27 February 2011, the 2010 edition of said Regulations is applicable to the present matter as to the substance. 4. His competence and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 5. In this respect, the DRC judge acknowledged that it was undisputed by the parties that the Claimant and the Respondent had signed an employment contract, on 22 July 2010, valid as from the date of signature until the end of the 2011/2012 season, according to which the Respondent was entitled to receive the amounts detailed in point I.2. above. 6. The DRC judge further noted that, on the one hand, the Claimant claims that the Respondent abandoned the club without authorization on 5 August 2010, after having played one match only and having received the amount of USD 5,000. Thus, the Claimant claims that the Respondent terminated the contract unilaterally and without just cause on 5 August 2010, and thus requests from the Respondent the payment of the total amount of USD 17,200, broken down in point I.4. above. 7. The DRC judge equally noted that the Respondent, on the other hand, confirms having played only one match for the Claimant and having received from the latter the amount of USD 5,000 upon the signature of the contract. However, the Respondent claims that the Claimant failed to pay him accommodation, food expenses, flight tickets as well as match bonuses and a further amount as sign-on fee, which had allegedly been promised to him. Thus, he deems to have had a just cause to abandon the Claimant and, subsequently, end his career in football. 8. Having established the aforementioned, the DRC judge deemed that the underlying issue in this dispute, considering the claim of the Claimant and the allegations of the Respondent, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the Respondent, and which party was responsible for the early termination of the contractual relationship in question. The DRC judge also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that caused the unjust breach of the relevant employment contract. 9. In this respect, the DRC judge firstly recalled that the parties do not dispute the fact that the sign-on fee in the amount of USD 5,000 was paid by the Claimant to the Respondent and that the latter has participated in one match with the club. In addition, the parties appear to agree upon the fact that such contract was terminated by the Respondent in August 2010, as the latter left country J. 10. In continuation, the DRC judge took due note of the fact that the Claimant in support of its allegations, provided FIFA with a receipt dated 1 August 2010 in the amount of USD 5,000 signed by the Respondent, a declaration from a hotel confirming the Respondent’s stay from 27 July 2010 until 5 August 2010 and including three meals per day, as well as its correspondence of 9 August 2010 requesting the country J Football Association to lodge a complaint against the player in front of the country R Football Federation (cf. point I.5. above). 11. In addition, the DRC judge observed that the Respondent never provided FIFA with any documentary evidence of his allegations. In particular, the DRC judge noted that the Respondent failed to provide copies of any notifications sent to the club regarding the non-payment of accommodation, food expenses, flight tickets and match bonuses allegedly due to him. 12. At this point and for the sake of good order, the DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right from an alleged fact shall carry the respective burden of proof. 13. Bearing in mind the aforementioned article, the DRC judge took note of the fact that the Respondent confirmed the Claimant’s allegation that he, in spite of having received the amount of USD 5,000 upon the signature of the contract, left the Respondent after having played the first match with it. 14. Finally, the DRC judge observed that the contract signed between the parties contained no specifications regarding the payment of match bonuses to the Respondent or regarding a sign-on fee beyond USD 5,000. 15. Bearing in mind the aforementioned principle as well as the particular circumstances of the present case, the DRC judge observed that the Respondent was not able to prove by means of substantial evidence that he had a just cause to terminate the contract with the Claimant, when he left country J on 5 August 2010. The DRC judge, however, noted that the Claimant did provide enough evidence of its compliance with the obligations which are actually established in the employment contract. 16. In view of the foregoing, the DRC judge concluded that the Respondent did not have a just cause to unilaterally terminate the employment contract and, therefore, decided that the Respondent is to be held responsible for the breach of contract without just cause. 17. Having established the aforementioned, the DRC judge focused his attention on the consequences of the breach of contract without just cause on the part of the Respondent. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract. 18. In this regard, the DRC judge took note of the Claimant’s requests for reimbursement of amounts which the Claimant deems to have erroneously paid to the Respondent, namely USD 5,000 as sign-on fee, USD 700 corresponding to a flight ticket and USD 1,500 corresponding to hotel expenses. 19. With regard to the sign-on fee of USD 5,000, the DRC judge first noted that the payment of the aforementioned amount is indeed established in the contract and that it shall be made upon receipt of the Respondent’s ITC. In this context, the DRC judge deemed that the start of the execution of the contract is not disputed by the parties, which both confirm that the Respondent has played one first match with the Claimant. The fact that the Respondent later on breached the contract on 5 August 2010, does not exempt the Claimant of its obligation to comply with its contractual obligations that had already fallen due by the time of the Respondent’s departure. Thus, the DRC judge concluded that the payment of the sign-on fee of USD 5,000 to the Respondent was due by the Claimant and that such amount is not reimbursable. 20. Subsequently, the DRC judge focused his attention on the Claimant’s request for the reimbursement of the amount of USD 700, corresponding to a flight ticket. In this regard, the DRC judge once again referred to the principle of burden of proof established in art. 12. par. 3 of the Procedural Rules and concluded, after noting that no proof of the purchase of such flight ticket was provided by the Claimant, that such request for reimbursement had to be rejected. 21. Finally, the DRC judge analysed the Claimant’s request for the reimbursement of the amount of USD 1,500 corresponding to hotel expenses. In this respect, the DRC judge noted that the declaration from the hotel provided by the Claimant (cf. point I.7. above) only confirms the Respondent’s stay from 27 July 2010 until 5 August 2010, but does not mention any specific amount. Furthermore, art. 18 of the employment contract (cf. point I.2. above) does provide for the Claimant’s obligation to provide the Respondent with USD 300 as housing allowance or “appropriate furnished accommodation” for the first month of contract. Therefore, the DRC judge concluded that this request of the Claimant had to be equally rejected. 22. In continuation, after having established that none of the above-mentioned requests for reimbursement of amounts paid could be granted, the DRC judge turned his attention to the Claimant’s request for compensation in the amount of USD 10,000, which it related to the incapacity of replacing the player in its squad. In this context, the DRC judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Respondent under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 23. In application of the relevant provision, the DRC judge held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 24. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the Respondent under the terms of the employment contract with the Claimant, as from 5 August 2010 until 30 June 2012, which would serve as the basis for the final determination of the amount of compensation for breach of contract. 25. In continuation, the DRC judge verified as to whether the Respondent had signed an employment contract with another club during the relevant period of time and, in this respect, it noted that according to the declarations of the Respondent and to the information at its disposal in TMS, the player apparently did not pursue his career in football after 5 August 2010. 26. Taking into account the aforementioned as well as the specific circumstances of the case at hand, the DRC judge decided that the Claimant’s specific request for compensation in the amount of USD 10,000 could be granted. Thereby, the DRC judge decided to partially accept the claim of the Claimant and to hold the Respondent liable to pay the Claimant the amount of USD 10,000 as compensation for breach of contract. 27. The DRC judge concluded his deliberations in the present matter by establishing that any further request filed by the Claimant is rejected. ** III. Decision of the DRC judge 1. The claim of the Claimant, Club S, is partially accepted. 2. The Respondent, Player L, is ordered to pay to the Claimant, Club S, the amount of USD 10,000 as compensation within 30 days as from the date of notification of this decision. 3. If the aforementioned amount is not paid within the above-mentioned time limit, an interest rate of 5% p.a. will apply on said amount as of expiry of the above- mentioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its consideration and a formal decision. 4. Any further claims lodged by the Claimant, Club S, are rejected. 5. The Claimant, Club S, is directed to inform the Respondent, Player L, immediately and directly of the account number to which the entire remittance is to be made and to notify the DRC judge of every payment received. ** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the DRC judge Jérôme Valcke Secretary General Encl. CAS directives